DIPLOMATIC CORRESPONDENCE RELATING TO THE INTERPRE- 

 TATION OF THE TREATY OF ARBITRATION. 



Mr. Foster to Mr. Herbert. 



Department of State, 

 Washington, September 27, 1892. 



Sir : On tlie Gtli instant, the day after the receipt by me of the 

 Printed Case of Her Majesty's Government called for by the provisions 

 of the Arbitration Treaty of 1892, in a conference which I had the honor 

 to hold with you at the Department of State, I made known to you the 

 painful impression which had been created upon me by a hasty and 

 cursory examination of that Case. I withheld any formal representa- 

 tion on the subject until I could have an opportunity to lay the matter 

 before the President. His absence from this capital and the attendant 

 circumstances have made it necessary for me to delay a communication 

 to you till the present. 



I am now directed by the President to say that he has observed with 

 surprise and extreme regret that the British Case contains no evidence 

 whatever touching the principal facts in dispute upon which the Tri- 

 bunal of Arbitration must in any event largely, and in one event en- 

 tirely, depend. No proof is presented upon the question submitted by 

 the treaty concerning the right of property or property interest asserted 

 by the United States in the seals inhabiting the Pribilof Islands in 

 Bering Sea, or upon the question, also submitted to the Tribunal of 

 Arbitration, concerning the concurrent regulations which might be 

 necessary in a certain contingency specified in the Treaty. 



If it were fairly to be inferred from this omission that no proofs on 

 these important points are intended to be offered in behalf of Her Maj- 

 esty's Government, no ground for criticism or objection by the Govern- 

 ment of the United States could arise, since it is within the exclusive 

 province of either party to determine what evidence it will submit in 

 respect to any part of the controversy, or to refrain from submitting 

 any evidence at all. But such inference as to the course contemplated 

 by the British Government does not seem consistent with certain state- 

 ments made by its agent in the Printed Case submitted by him. 



In reference to the asserted property rights and interests, it is said, 

 after a brief discussion of the question upon the assumption that seals 

 are /era? naturae : "In the absence of any indication as to the grounds 

 upon which the United States base so unprecedented a claim as that 

 of a right to protection of, or property in, animals ferae naturae upon the 

 high seas, the father consideration of this claim must of necessity be 

 postponed." (British Case, p. 140.) And in reference to the subject 

 of concurrent regulations it is said : " The further consideration of the 

 subject of any proposed regulations, and of the evidence proper to be 

 considered by tjie Tribunal in connection therewith, must of necessity 

 be for the present postponed." (British Case, p. 157). 



It would seem from the foregoing extracts that it is the view of the 

 Agent of the British Government that he still has an opportunity of 



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